Bielski v. Schulze

• Decision Date: 06 March 1962
• Citation: 16 Wis.2d 1,114 N.W.2d 105
• Parties: Carl BIELSKI et al., Plaintiffs-Respondents, v. Edwin Fred SCHULZE et al., Defendants-Respondents, Mutual Service Casualty Insurance Co., a foreign corp., Impleaded Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 105

114 N.W.2d 105

16 Wis.2d 1

Carl BIELSKI et al., Plaintiffs-Respondents, v. Edwin Fred SCHULZE et al., Defendants-Respondents,

Mutual Service Casualty Insurance Co., a foreign corp.,

Impleaded Defendant-Appellant.

Supreme Court of Wisconsin.

March 6, 1962.

Action commenced by plaintiffs-respondents Carl Bielski and Elnora Bielski, his wife, against defendants-respondents Edwin Fred Schulze and his insurer Farmers Insurance Exchange to recover damages for personal injuries sustained when the automobile driven by the plaintiff-husband, in which the plaintiff-wife was a passenger, collided with the car driven by Schulze. Schulze and his insurer impleaded the defendant-appellant Mutual Service Casualty Insurance Company, the insurer of the plaintiff-husband, and cross-complained for contribution.

The jury found Schulze was not grossly negligent but was causally negligent in respect to yielding the right of way and making a left turn at an intersection. The jury found Carl Bielski causally negligent as to speed, apportioned 95% of the total causal negligence to Schulze and 5% to Bielski, and awarded $26,000 to the plaintiff-wife for her personal injuries which amount was reduced by the court, on stipulation, to $25,000. That part of the case relating to the plaintiff-husband's recovery is not before us. The respondent Farmers Insurance Exchange obtained a judgment for contribution against the Mutual Service Casualty Insurance Company for $12,500. From this judgment, the Mutual Service Casualty Insurance Company appealed.

Upon the oral argument, this court requested additional briefs on the questions of whether the rule of contribution should be changed and whether the doctrine of gross negligence should be abolished. Briefs were submitted by the parties, and others as Amicus Curiae.

Vaudreuil & Vaudreuil, Kenosha, for appellant.

Bender, Trump, Davidson & Godfrey, Milwaukee, Kneeland A. Godfrey, Milwaukee, of counsel, for defendants-respondents.

Irving D. Gaines, Albert J. Goldberg, Robert L. Habush, and Arlo A. McKinnon, Milwaukee, of counsel, Daniel T. Flaherty, La Crosse, amici curiae.

HALLOWS, Justice.

Appellant argues the court should have found the defendant Schulze grossly negligent as a matter of law and denied his insurer contribution. The accident occurred at the intersection of Highway 50 and County Trunk Highway HH in Kenosha county, on July 17, 1959, at about 4:00 p.m. Prior to the accident Carl Bielski, with his wife Elnora in the front seat and their two children in the back seat, was driving his car in an easterly direction on Highway 50 just west of the intersection with HH, and Schulze was driving his car in a westerly direction on Highway 50 with the purpose of turning left onto HH. When Bielski was about 200 feet from the intersection, he saw Schulze's car with its left-turn signal on. When the Bielski car, traveling between 45-50 m. p. h., was about 70-80 feet from the Schulze car, Schulze proceeding at a speed of about 10-12 m. p. h., turned left across the eastbound lane of Highway 50 onto HH. Bielski applied his brakes and skidded about 60 feet before colliding with the Schulze car in the eastbound lane of Highway 50, in the southeast quarter of the intersection.

At the time of the accident, the weather was clear and the road dry. The speed limit on Highway 50 was 50 m. p. h. Schulze had been drinking prior to the accident and a test made while he was in the hospital showed an alcohol content in the blood of 0.33% by weight. The correctness of this test and the effect of Schulze's drinking was the subject of conflicting testimony. We have reviewed the evidence and conclude a jury question was presented and the jury could find, while Schulze had been drinking, his conduct did not amount to gross negligence. Whether his conduct amounted to gross negligence as a matter of law is immaterial in view of our conclusion on that point expressed later in this opinion.

The appellant's second argument is that the making of a sudden left turn by Schulze created an emergency and Bielski was not guilty of causal negligence as to speed. It is true, Bielski was driving within the speed limit, but as he approached the intersection and saw the turn-light on Schulze's car, he did not reduce his speed as required by sec. 346.57(3), Stats. Bielski had 200 feet in which to reduce his speed after he saw Schulze's car approaching with his left-turn signal operating. If he had done so, he could have stopped his automobile sooner when Schulze made his left turn. Bielski left skid marks on a dry pavement of some 60 feet. At the time of the impact, the Schulze car was almost across the eastbound lane of Highway 50 and facing practically south when struck. There was credible evidence for the jury to find causal negligence as to speed on the part of Bielski. Rodenkirch v. Johnson (1960), 9 Wis.2d 245, 101 N.W.2d 83; Ruid v. Davis (1959), 8 Wis.2d 288, 99 N.W.2d 129.

The emergency doctrine has no application because even though Schulze was negligent in turning to the left, Bielski is not entitled to the benefit of the emergency rule as he was likewise negligent. Schmidt v. C. Schlei Dray Line, Inc. (1959), 7 Wis.2d 374, 97 N.W.2d 194; Wiley v. Fidelity & Casualty Co. of N. Y. (1958), 3 Wis.2d 320, 88 N.W.2d 366; Jewell v. Schmidt (1957), 1 Wis.2d 241, 83 N.W.2d 487.

If it were not for the additional questions, the judgment would be affirmed. The court, however, decided to re-examine the doctrine of contribution between joint tortfeasors and of gross negligence, and requested briefs on the following questions: (1) Whether the amount of liability for contribution of tortfeasors who sustain liability by reason of concurrent causal negligence should be determined in proportion to the percentage of causal negligence attributable to each, and (2) whether the conduct heretofore characterized as gross negligence should be treated as ordinary negligence for all purposes or at least for the purpose of comparison and contribution.

Contribution

After considerable study and careful consideration of the first problem and of the consequences of a change or modification of the present rule, ¹ we conclude the amount of liability for contribution of tortfeasors who sustain a common liability by reason of causal negligence should be determined in proportion to the percentage of causal negligence attributable to each. We make it plain at the outset, this refinement of the rule of contribution does not apply to or change the plaintiff's right to recover against any defendant tortfeasor the total amount of his damage to which he is entitled. Likewise, we point out that sec. 331.045, Stats., has no application to the doctrine of contribution. Brown v. Haertel (1933), 210 Wis. 354, 244 N.W. 633, 246 N.W. 691; Zurn v. Whatley (1933), 213 Wis. 365, 251 N.W. 435. The right of one tortfeasor to contribution is not barred because his negligence may be equal to or greater than the negligence of his co-tortfeasor.

The problem of contribution is the sharing or the distributing of the loss on equitable principles between joint tortfeasors having a common liability to the injured party when one of the tortfeasors has borne an unjust proportion of the common burden. The crux of the question is whether the present automatic method of determining the number of equal shares between the number of joint tortfeasors involved is as equitable and as just a determination of contribution as determining the amount of the shares in proportion to the percentage of causal negligence attributable to each tortfeasor. We think not.

The doctrine of contribution is an equitable doctrine based on natural justice and well recognized in suretyship and other areas of the law before it was adapted to negligence. As applied in contracts, equality was equity, either on an implied promise of such reimbursement or because of the nature of the liability for the debt. See Estate of Ryan (1914), 157 Wis. 576, 147 N.W. 993, L.R.A.1917A 443. Naturally, the prorata share concept, being part and parcel of the doctrine, was used when the doctrine was applied in the field of negligence. At the time of this transition, negligence was not determined on a comparative basis, and two or more negligent tortfeasors stood in equal relation to each other as co-debtors did. Palmer v. Wick and Pulteneytown Steam Shipping Co., Ltd. (1894), A.C. 318.

Wisconsin, at a relatively early date, took the forward step by judicial decision and recognized contribution between negligent tortfeasors in Ellis v. Chicago & N. W. R. Co. (1918), 167 Wis. 392, 167 N.W. 1048. Even today, Wisconsin is among the minority of states which, by court decisions, recognizes the doctrine of contribution in negligence cases, ² although some 20 states, by legislation, have adopted the rule for general application to negligent cases or for more limited purposes. ³ No other state has determined contribution on a comparative negligence basis by judicial decision, but by legislation, some states have done so in adopting the 1939 Uniform Contribution Among Tortfeasors Act. 9 U.L.A. 233.

Wisconsin is unique, perhaps, in possessing devices of procedure and practice which make the adoption of the new rule pragmatically sound as well as realistically just. The use of the special verdict is commonplace; ⁴ automobile liability insurers of tortfeasors may be sued with or without their insureds, and may be interpleaded for contribution in some actions ⁵ and we have a comparative negligence statute to determine the right of a plaintiff guilty of contributory negligence to recover or to reduce the amount of his recovery. Sec. 331.045, Stats Sec. 331.045, Stats., must be regarded as an attempt to correlate the amount of recovery to the degree of negligence, at least to a limited extent, and a recognition that justice and fairness demand a comparison of the relative fault of tortfeasors in realistic terms of...